WELLFLEET — Trudy Vermehren has been in an argument with neighbors about noise ever since she moved her popular year-round gathering spot, the Fox & Crow Café, from its previous location on Commercial Street to 70 Main St. last July.
Earlier this month, the dispute moved to state Land Court, where Michael Shannon and his husband, Bradley Reichard, who live across the street at 55 Main St., filed suit to overturn the special permit for an outdoor patio that the zoning board of appeals granted Vermehren last month.
The ZBA is now hoping that the two sides and their attorneys can get together and settle their differences by agreeing on a set of conditions for having live entertainment at the café.
Shannon and Reichard say they are not opposed to having a restaurant operate across the street. There have been restaurants there since the couple bought their house in 2002. And in the 20 years they have lived on Main Street, they say, they have never had reason to file a complaint with the town.
What’s changed, say the couple, is Vermehren’s practice of keeping the restaurant’s windows and doors open when music is playing inside. Previous owners kept the windows closed, which kept the noise level down in the neighborhood, they argue. Vermehren has also added a patio in front of the restaurant in an area formerly used for parking, and she frequently offers outdoor entertainment.
The patio is just 45 feet away from Shannon and Reichard’s property.
Not long after the Fox & Crow opened last summer, the couple, bothered by the live music, went to town hall to check what was allowed under Vermehren’s entertainment licenses. They found that she did not have a license to operate at the new location.
During a hearing last fall, Town Administrator Rich Waldo said Vermehren had checked on the entertainment licenses in July and was told by town hall staff that they had been transferred from her previous location.
The select board addressed the error and granted new licenses. The town’s attorney told the board it could attach conditions, such as keeping the windows closed (which Vermehren has said she’s not willing to do) or keeping the musicians inside, but the board chose not to.
Shannon and Reichard say the music disrupts their lives, causing stress and interrupting their sleep. They filed a request for zoning enforcement with the building commissioner in early spring, attaching a list of purported bylaw violations, including those related to outdoor and indoor music. The building commissioner responded to their attorney, Christopher Senie of Brewster, that there were no zoning violations. He said that Vermehren intended to discontinue the practice of having live music outdoors on the patio.
Attorney Senie told the zoning board at a hearing on May 11 that his clients are not opposed to the patio. They are opposed to outdoor live entertainment. “We appealed [the special permit] in court only because there are no safeguarding conditions,” Senie said.
At the hearing, Senie said the unpleasant effects of the entertainment experienced by Shannon and Reichard could have been mitigated if conditions had been attached to the special permit. The Wicked Oyster, located next door to the Fox & Crow, has to comply with conditions attached to its special permit granted in 2001, said Senie. They include no seating on the patio after 10 p.m., no music outside, and no light spilling onto abutting properties.
“Why would the Wicked Oyster have to comply with conditions that protect the neighbors from adverse impacts and not the Fox & Crow?” Senie asked.
The only condition attached to Vermehren’s special permit was that she must return for an amended permit if she wants to expand seating beyond the current cap of 80 customers.
Senie presented the ZBA with five possible conditions of operation that were agreeable to Shannon and Reichard: limiting use of the patio to 7:30 a.m. to 10 p.m.; limiting use of the patio to seated diners; no outside music or other outdoor entertainment; requiring windows and doors to remain closed during indoor entertainment except when customers are entering or exiting; and requiring that patio lighting be dark-sky compliant and not directed at abutting properties.
Senie suggested the conditions as part of a proposed order that would supersede the building commissioner’s decision that there were no zoning bylaw violations at the Fox & Crow.
Zoning board members said the conditions didn’t appear to be too onerous. Items like dark-sky lighting are fairly standard, they said. But they balked at the condition requiring windows and doors to be closed during live entertainment.
Zoning board chair Sharon Inger asked Senie why he hadn’t proposed that list of conditions a few weeks earlier during the special permit hearing about patio dining, “rather than just fighting outside dining altogether and then coming back to us now with ‘All we want are these conditions.’ We could have saved ourselves a lot of time and energy,” Inger said.
“It just took a while for us in our thinking to get into what specifically we think would be fair here,” Senie said.
The neighbors would be willing to meet with Vermehren and her attorney, T.J. Hurrie, and talk about conditions, Senie added. The attorneys could then ask the Land Court judge to remand the case back to the ZBA.
The zoning board voted to uphold the building commissioner’s opinion rather than modifying it and to focus on possible modifications to the recently granted special permit.
“We would be happy to take a second look,” Inger said.
Vermehren had several supporters who submitted letters and spoke at the hearing. Musician Jodi Birchall expressed frustration over the length of time the debate has dragged on. “I think that it’s time to just put this thing to bed and say, ‘We’re sorry, but you bought a piece of property across from a restaurant that’s historically had music,’ ” she said.
Jazz performer Eleanor Dubinsky, who has frequently played at Vermehren’s restaurant, called music a “healing experience” for performers and audience members. “There’s a lot of love in this restaurant,” Dubinsky said. “It’s a very important place. It’s a treasure.”
Inger read a letter of support sent by the owners of the Wicked Oyster. Calling the restaurant “a welcoming addition to Main Street,” Eliza Fitts and Ken Kozak wrote, “It sets the tone for visitors entering our lovely town center.”